4closureFraud's picture

Five National Banks Sued by AG Coakley in Connection with Illegal Foreclosures and Loan Servicing

First Comprehensive Lawsuit to Address Foreclosure Crisis Seeks to Hold Banks Accountable For Illegal and Deceptiv

Bank of America, Wells Fargo, JP Morgan Chase, Citi, and GMAC All Named As Defendants; Mortgage Electronic Registration System (“MERS”) Also Sued

BOSTON – Five national banks have been sued in connection with their roles in allegedly pursuing illegal foreclosures on properties in Massachusetts as well as deceptive loan servicing, Attorney General Martha Coakley announced today.  The lawsuit was filed today in Suffolk Superior Court against Bank of America, Wells Fargo, JP Morgan Chase, Citi, and GMAC.  It also names Mortgage Electronic Registration System, Inc. (“MERS”) and its parent, MERSCORP Inc., as defendants.

“The single most important thing we can do to return to a healthy economy is to address this foreclosure crisis,” said AG Coakley.  “Our suit alleges that the banks have charted a destructive path by cutting corners and rushing to foreclose on homeowners without following the rule of law. Our action today seeks real accountability for the banks illegal behavior and real relief for homeowners.”

In the complaint, the Attorney General alleges these five entities engaged in unfair and deceptive trade practices in violation of Massachusetts’ law by:

    Pervasive use of fraudulent documentation in the foreclosure process, including so-called “robo-signing”;
    Foreclosing without holding the actual mortgage (“Ibanez” violations);
    Corrupting Massachusetts’ land recording system through the use of MERS;
    Failing to uphold loan modification promises to Massachusetts homeowners.


According to the complaint, the banks used false documentation in the foreclosure process, including so-called “robo-signing”, whereby bank personnel signed affidavits that were untrue, or not based on the signor’s actual knowledge.  An entity wishing to foreclose on a property must demonstrate it has filed an affidavit in compliance with Massachusetts law.  By  October 2010, the banks’ flagrant disregard of affidavit and notary process requirements became widely known.  Filings with various Registers of Deeds provided to the Attorney General’s Office revealed the pervasive use of mortgage service employees to sign hundreds of affidavits and sworn statements without personal knowledge of the information contained in those affidavits.   Evidence also suggests these practices were not confined to the foreclosure process, but also used in the assignment, transfer and modification of mortgages secured by property in Massachusetts.


Second, these five entities participated in unlawful foreclosures when they commenced foreclosures on mortgages where they were not the holders of those mortgages.  The Supreme Judicial Court (SJC), in Commonwealth v Ibanez, recently upheld Massachusetts law and stated that “only the present holder of a mortgage is authorized to foreclose on the mortgaged property.”  The complaint alleges that these entities ignored this fundamental legal mandate and proceeded to foreclosure even though they did not hold the mortgage, and thus had no legal authority to conduct the foreclosure.  The banks’ failure to obtain a valid assignment of the mortgage prior to foreclosure has adversely impacted titles to hundreds, if not thousands, of properties in the Commonwealth.  The complaint alleges that the banks falsely claimed to be the holder of a mortgage in several foreclosure documents even though they failed to obtain a valid assignment of the mortgage.


Third, the complaint alleges that these banks have undermined our public land record system through the use of MERS, a private electronic registry system.  According to the complaint, the creation and use of MERS was adopted by these defendants primarily to avoid land registration and recording requirements, including payment of recording and registration fees, and to facilitate sales of mortgage loans.  The use of MERS has resulted in a lack of transparency as to the entities that have the legal authority to enforce mortgages, and unfairly conceals from borrowers the true identity of the holder of the debt.  Since 1997, more than 63 million home loans have been registered on the MERS System, accounting for more than 60 percent of all newly-originated mortgage loans.  The complaint also alleges that through the use of the MERS system, the banks unlawfully failed to register assignments of mortgages and transfers of the beneficial interests in mortgages.


Finally, the complaint alleges the banks deceived and misrepresented to borrowers the process, requirements, and availability of loan modifications.   The banks publically claimed to be engaged in widespread loan modifications aimed at preserving home ownership and avoiding unnecessary foreclosures.   Through the National Homeownership Retention Program, which commenced on November 6, 2008, these banks represented that they would work with borrowers to help them avoid unnecessary foreclosures by reducing monthly mortgage payments to affordable and sustainable levels.  The complaint alleges these banks misled borrowers about their eligibility for this program and the amount of relief available, failed to achieve a significant level of modifications, and often strung along borrowers for months in trial modifications that were ultimately rejected.

The AG’s lawsuit seeks civil penalties, restitution for harm to borrowers and compensation for registration fees that were avoided. The lawsuit also seeks to hold the banks accountable through permanent injunctive relief to provide a solution for prior unlawful foreclosures and to require that the banks, going forward, register assignments and other documents in accordance with Massachusetts law.

The lawsuit follows more than a year of negotiations with the banks over a 50-state settlement focused around the issues of fraudulent documents, including “robo-signing.”  AG Coakley had made clear that she would not sign on to an agreement with the banks if it included broad liability release regarding MERS and other issues or if she did not believe the banks had come to the table with an offer in the best interest of Massachusetts.

AG Coakley’s office has been a national leader in holding banks and investment giants accountable for their roles in the economic crisis.  AG Coakley has obtained recoveries from Morgan Stanley, Goldman Sachs, Royal Bank of Scotland, Countrywide, Fremont Investment & Loan, Option One, and others on behalf of Massachusetts homeowners.  As a result of these actions, her office has recovered more than $600 million in relief for investors and borrowers, helped keep more than 25,400 people in their homes, and returned nearly $60 million in taxpayer funds back to the Commonwealth.

More information about AG Coakley’s work during the lending crisis can be found here pdf format of Subprime Lending Crisis Factsheet .

The lawsuit is being handled by Attorney General Martha Coakley’s Consumer Protection Division, including Assistant Attorneys General Amber Villa, John Stephan, Sara Cable, and Justin Lowe; Acting Division Chief David Monahan; Chris Barry-Smith, Chief of the Public Protection & Advocacy Bureau and Stephanie Kahn, Deputy Chief of the Public Protection & Advocacy Bureau.


Full complaint below...

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corvettekenny's picture

I'm short BoA stock, because, well, they seem to be the poster child for all that is wrong in finance.. So my question is, why the hell is BAC UP 8% since this was announced??

Hook Line and Sphincter's picture

Just how long are the banks going to own these properties, and who are they going to sell them to? Where the hell will the buyers coming from?  

Who's buying in Detroit? Soon, a UnitedDetroit of America

Implicit simplicit's picture

Awesome. Finally. Go get em Martha Coakley. It almost seem like there was an unwritten word from the top not to go after the TBTF banks, even though the evidence seemed overwhelming. Maybe there is hope for the kleptocracy yet.

Squid-puppets a-go-go's picture

And I thought an "Ibanez violation" was a bad guitar solo

puck's picture

They are saving GS through the back door

ParkAveFlasher's picture

Fit Coakley for hit-and-run proof body armor. 

Hannibal's picture

Stop the looting (and frauds) start prosecution. Finally! Hat tip AG Coakley

PaperBear's picture

Can ZeroHedge do an article on all the mortgages originated unsuspecting property owners then foreclosing on unmortgaged properties.

MachoMan's picture

That, inherently, is not a problem per se...  because any attorney worth a shit would be salivating at an illegal foreclosure/trespass/unlawful detainer case against any remotely deep pocketed defendant.

Defending an indigent (tapped out) homeowner from foreclosure, on a defaulted note, is a totally different ball of wax.  I guess if you can find one with plenty of idle time, then great...  but, you probably don't want and idle attorney representing you...

ebworthen's picture

I suppose those banks are lucky they have the FED and the CONgress backing them up.

MachoMan's picture

Since when is regulatory capture luck?

Hook Line and Sphincter's picture

Depends on your definition of luck. Some see it as opportunistic behavior in response to enhanced awareness and positioning.

onlooker's picture

the rules of law and order and the honest enforcement of them are lacking on a wide scale

willien1derland's picture

I wonder if the Fed will open Mortgage Swap lines whereby it implements QE3 & purchases all mortgages subject to the stated infractions then it assigns the TBTF banks to service its 'loan portfolio' & circumvent the whole process...I wish I could find some humor in this but unfortunately I am convinced that the three (3) branches of government; executive, judicial, & legistative have become subordinated to the 4th branch of government - the US Treasury/Federal Reserve...I have been experiencing a very sickening feeling with each intervention as it appears to me that one fine day in the very near future some derivative issue will occur which will set in motion the mother of all financial collapses...I just hope that the US Marines storm the NY Fed, GS, JPM, MS, BAC, C before such an event & rid the US of the most significant risk to its sovereignty -the financial terrorists.

tony bonn's picture

i sure hope that yet another lone gunman doesn't put a bullet in her head or take of the landing wheels of the next airplane she flies...

i love this story and the fight against wickedness....i hope that she prevails

Seasmoke's picture

unless they plan on killing most of the 99%, there isnt that many lone gunmen......THE CAT IS OUT OF THE BAG AND IT CANT BE PUT BACK IN

MachoMan's picture

AG Coakley withdraws to run for governor in 3...  2...  1...

I'm guessing the AG has a gut lock on a few charges, but I'm also guessing that the "undermining public records" bit is a helluva stretch...  without reviewing Massachusetts law, the odds are that statutes (and common law) authorized MERS' non-recording of mortgage assignments.  The issue is whether or not the purported holders/creditors should be allowed to take advantage of priority status under the recording acts...  if it was legal, then yes...  if not, then no...  pretty simple and straight forward determination...  off hand, I sincerely doubt there is any requirement to record an assignment...  however, I am confident that there is a law regarding whether or not (and how) an assignment must be recorded in order to be protected by the recording statutes (and thus have priority).

Needless to say, if you don't want to pay the recording fees, you shouldn't have to...  but, if so, then you'll be prohibited from getting priority over any others who may record...  unless the locale has decided assignments do not have to be recorded and can essentially piggyback on the initially recorded mortgage (of which most all did via uniform law).  In which case the AG drops that aspect of the complaint and focuses on the winners.

Northeaster's picture

without reviewing Massachusetts law, the odds are that statutes (and common law) authorized MERS' non-recording of mortgage assignments


Which is why The Essex County Registrar of Deeds is looking for his money. I brought this issue up to my City Solicitor because they were using MERS, they sent someone in under a week, paid the fee and put in the book.

MachoMan's picture

This AG is parroting the arguments of local recorders...  sour grapes... 

The argument against the recorder is the same as against the AG, if you want to go back and put the genie back in the bottle and depress home prices by an unknown, but significant amount, then we can...  and then the recorder can cough up all the marginal taxes collected from the existence of MERS propping up the dying housing industry...  of course, aside from the fact that not recording the assignments was perfectly acceptible by the very state the recorder is beholden (and an arm of, no less).

chunga's picture

Time is up. They are guilty on all counts. Let the cleansing begin. Take them all to Salem for swift prosecution.

Would you want to record something like this?

Assignment of Mortgage from Hell

MachoMan's picture

Not really...  if the banks were allowed to skate by and take advantage of the priority afforded under the recording acts without actually recording, due to a law passed to this effect by the state in question, then it was the state who perverted the sanctity of land title.

Now, how you get around routinely submitting fraudulent documents to a court and foreclosing where you have no standing is a totally different ballgame.

They're all donkeys and we all know it.  I'm curious if we'll start seeing some adverse possession cases pop up...  that will be interesting.  Plus, it's t-minus ~2 years before the avalanche of tax sales hit...  they might get away with skirting recording fees, but the property tax collector gets his due.  And there's no way in hell these donkeys are keeping up with all the tax payments (since 07, maybe $2.5k+/house).  ruh roh.

chunga's picture

Property tax is a whole 'nother can of worms. I have seen more than one instance of a beleaguered homeowner contesting foreclosure who has had the servicer report to IRS they paid the property tax.

Guess who paid it and had the cancelled checks to prove it. The deadbeat homeowner. Recording fees are a red herring in the mix. The tax payers take it in the fanny every which way but loose.

They bail out the pigmen at the banks, the GSEs, the AIGs and their CDS, pay for OCC, SEC, FBI to sit on their hands, etc. Oh yeah, the innocent investors and REMIC. The whole thing blows.

MachoMan's picture

Wow.  That's pretty brazen (and I'm not shocked by much).

All of my dealings with the I.R.S. have been pretty civil...  once your case is assigned someone and you can contact them directly, the whole process becomes much easier...  I won't say it's a pleasure dealing with them, but I can't say I've ever had a bad experience...  show them the cancelled check and winner winner chicken dinner.

Hopefully the purported holder got audited for their efforts ;)  [not that it matters, given they're just bailed out with the other hand].

Needless to say, I'd be suing the purported holder immediately for that kind of bullshit.  Give them a shakedown of their own.  Probably not much money in it, but seems like a helluva easy case with a decent basis for punies (given they probably did the same with many homeowners).  Donkeys, all of them...  worse than the first day of the main event at the world series of poker.

I think people are severely underestimating the impact of tax sales in the near future...  states are all gearing up for massive influxes in the numbers of homes that must be auctioned...  the process will be streamlined...  and the ability of lienholders, etc., to prolong the matter will be diminished.  I'm nearly certain I've discovered a friggin huge loophole in the process and am keeping the powder dry...  needless to say, the present purported holders are going to be in for a rude awakening.

chunga's picture

What remedy do you think would be headed to the deadbeat homeowner? I've seen them in sworn affidavits that are part of the (completely stalled) foreclosure filings but never seen it reported to IRS.

MachoMan's picture

As far as compensatory goes:

1.  Any professional fees associated with dealing with the IRS;

2.  Any cost of medications/doctor visits for pain and suffering associated with the audit/letters/etc. (get creative, but you'll need to have verified doctors reports..  NOTE:  NOT A FUCKING CHIROPRACTOR);

It's going to be difficult to establish any type of contractual breaches given privity, but the duty of good faith and fair dealing comes to mind (seems unfair to give an assignee any greater rights than the assignor had, presuming you can mold your facts to fit that rule).

Might try negligence (may not be available for pure economic damage);

Some type of miscellaneous remedy...  maybe something regarding the act of false filing with the IRS...  probably some cases out there...  maybe with ex husband/wife both taking deductions for kids?  Probably would be decided on other grounds (prior court order).  But, you can petition the court for ANY remedy you want...  if you don't have a cause of action at law that fully covers you, then throw yourself on the court's equitable powers and make up your own cause of action.

Punies are probably only going to be available if you had some type of bodily injury/personal harm...

But, maybe a couple grand...  I'd guess tops at maybe $20k w/ good medical proof...  plus any punies...  just depends on all the facts and degree of damage...  and your location... 

If there isn't much damage, I'd head over to small claims court and let er rip...  you'll get your day in court and can bitch them out anyway...  just be sure not to allege any causes of action in which the other side can be awarded attorneys fees (probably wouldn't get them granted anyway).  If there appears to be more damages, then you could probably get an attorney on contingency...  just find an ambulance chaser...  although, insurance probably isn't going to cover this one...  so it requires a different approach. 

Just spitballing here...

Widowmaker's picture

Show me blood or it's all political fraud-theater.

Corpses better be stacking up from lying homeowners and banks alike or there is no rule-of-law (so pretended).

You lied, stole, or cheated - you bleed.

hmmtellmemore's picture

This is just scratching the surface, and is 2 years late.

Gene Parmesan's picture

That's to be expected from Martha Coakley, being the corrupt, incompetent hack that she is.

Gene Parmesan's picture

Apparently at least three people here have no clue whatsoever about her failure to enforce laws that don't fit her far left agenda. Politically connected corporations and politicians with a D after their name get a pass.

Here's more on this pillar of righteousness:

NotApplicable's picture

Is she a fire-wall, or a firebrand?

Looks like both (the most dangerous kind).

waterhorse's picture

I hope the other AGs follow suit.

NotApplicable's picture

Wait, you think this is real? LOLOLOLOLOL

Miss Expectations's picture

Criminal indictments...waiting...waiting...waiting...

MFL8240's picture

Go get them we hate these fucking sewers!

notaFerengi's picture

It's about damn time.